Sexting, Teacher Negligence, and the Law

Schools are change agents in many ways. Through their students, they reflect the trends and fads that leave imprints on society. Nowhere is this more evident today than in the realm of technology, where teachers and administrators must continually keep pace with the latest advances introduced to them through students.

Because these advances often pose new challenges in classroom management and student discipline, it is imperative that administrators, teachers, and school board members understand their legal responsibilities when facing difficult choices brought about by the digital age. For example, how should teachers respond if they are confronted with a situation like the following?

Stephanie and Jacob are both 8th grade students at a local middle school. At the beginning of the year, the two started dating. During their courtship, Stephanie took a few “inappropriate” pictures of herself and sent them to Jacob on his cellphone (much to his delight). As the Thanksgiving holiday approached, Stephanie decided to break up with Jacob, and told him so during a bus ride home one afternoon. Infuriated, Jacob sent the pictures to several of their friends’ cellphones as a way to get back at her.

The next morning, Stephanie was informed by her friends at school that Jacob had sent the pictures to numerous people. She soon realized that students were talking about the pictures, as many began to make fun of her in the hall, clearly creating a disruption. Distraught and crying, she reported the situation to her homeroom teacher, explaining everything that had happened. The teacher informed Stephanie that since the incident occurred after school, nothing could be done.

Though technology changes rapidly, the law remains fairly consistent and is slow to change.

The issue of sexting—texting lewd messages or pictures via cellphone—has gained prominence in secondary schools in recent years. But even with all the advances in technology and the unintended consequences they bring, the law has remained fairly consistent. Was the teacher correct, according to current school law, in not taking action? No. Schools officials may lawfully take action and administer discipline for incidents that happen outside the school, if the incident creates a significant disruption in the school. In the case above, had something happened to Stephanie as a result of the photos (if she attempted suicide, for instance), the teacher might have been found guilty of negligence. If an incident similar to this one hasn’t occurred in your school, the odds are that it soon may. In such situations, a lack of action by those in the school could have dire consequences.

Consider the story of Jesse Logan, a young, energetic, and outgoing high school student in Ohio. NBC’s “Today Show” contributing correspondent Mike Celizic reported in 2009 that during Jesse’s senior year she “sexted” her boyfriend pictures of herself naked. After the couple broke up, he forwarded the pictures to a number of other girls in the school. The girls proceeded to torment and bully Jesse relentlessly, causing her to skip school and eventually to take her own life. This was a tragic ending to an increasingly common story. Celizic reported that 44 percent of boys indicated having seen sexual images of girls in their schools, and that about 15 percent of this group said they had disseminated the images upon breaking up with the girls.

Negligence remains one of the primary causes of legal action when school personnel find themselves named in a lawsuit. By definition, negligence is an injury caused to another person by the unreasonable conduct of others. It is considered a tort, which is a civil (not criminal) wrong. In lay terms, if a person’s action, or failure of action, causes another person to be injured (physically, emotionally, or financially), he or she may be found guilty of negligence in a court of law.

Given all the interactions teachers and staff members have with students on a daily basis, this can sound quite frightening, but school personnel should not sound the alarm bells just yet: Courts have acknowledged that schools cannot guarantee the safety of all students. Courts often look at a claim of negligence and ask: Would a reasonable and prudent person have anticipated harmful results in this situation? If the answer is no, then it is not a case of negligence.

In addition, most states recognize the difficult job teachers and administrators face each day, and the numerous decisions that need to be made regarding students. Because of this reality, state legislatures have established governmental immunity for teachers and administrators in cases of simple negligence. For example, the Virginia state code specifically states the following:

Any teacher employed by a local school board in the Commonwealth shall not be liable for any civil damages for any acts or omissions resulting from the supervision, care or discipline of students when such acts or omissions are within such teacher’s scope of employment and are taken in good faith in the course of supervision, care or discipline of students, unless such acts or omissions were the result of gross negligence or willful misconduct.

Though this insulation is important, is does not protect employees in cases of gross negligence, or total disregard for the safety of students. Even with these protections, this does not mean a school employee or a school district cannot be sued. If an employee or district is sued for negligence, courts often use a four-pronged test to determine if the defendant is guilty. All four parts of the test must be met for the court to find in favor of the plaintiff. They include (1) a duty to protect others; (2) failure to exercise appropriate standard of care; (3) the existence of a causal connection between the act and the injury; and (4) an injury, damage, or loss.

In the fictional case above, since Stephanie reported the incident to the teacher, the teacher then had a clear legal duty to protect her. Did the teacher fail to exercise an appropriate standard of care in this case? Yes. A case could be made that a reasonable person would report the incident to the administration or refer Stephanie to the school counselor. As the teacher failed to take reasonable action, she failed to exercise an appropriate standard of care. Continuing through the four-pronged test, if there was some form of injury to Stephanie due to the distribution of the pictures, it could be argued that the teacher’s lack of action served as the proximate cause of the escalation of the incident. Finally, in this case, Stephanie and/or her parents would need to demonstrate that an injury did in fact occur, whether it was physical, emotional, or financial.

Though this hypothetical case involves an issue directly related to the abuse of technology, the underlying legal premise remains the same; it is often not a question of what serves as a catalyst to create the issue, but how the issue is handled. School districts would be wise to have clearly defined policies dictating how employees should handle situations such as this. Technology has changed our lives in many ways, some for better and for worse, and will continue to do so well into the future. It presents new challenges for parents, teachers, administrators, and school districts alike as we work to educate our young people.

Though technology changes rapidly, the law remains fairly consistent and is slow to change. School districts can rest assured that if their employees conduct themselves as a reasonable person would in any given situation, the law is designed to protect them.

Michael D. Kelly spent 17 years as an elementary and middle school teacher, assistant principal, and principal. He is currently an assistant professor of educational leadership at Regent University, in Virginia Beach, Va., where he teaches school law and personnel supervision.

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